Lahtinen v. Continental Bldg. Co.

• Decision Date: 02 October 1936
• Docket Number: No. 33317.,33317.
• Citation: 97 S.W.2d 102
• Parties: AMELIA LAHTINEN v. CONTINENTAL BUILDING COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

97 S.W.2d 102

AMELIA LAHTINEN v. CONTINENTAL BUILDING COMPANY, a Corporation, Appellant.

No. 33317.

Supreme Court of Missouri.

Court en Banc, October 2, 1936.^*

Appeal from Jackson Circuit Court. — Hon. Darius A. Brown, Judge.

REVERSED.

Ryland, Stinson, Mag & Thompson and Robert E. Rosenwald for appellant.

(1) Appellant was not guilty of any act of negligence entitling respondent to recover in this case. Berg v. Elder, 195 N.E. 722; Byers v. Essex Inv. Co., 281 Mo. 375, 219 S.W. 570; Main v. Lehman, 294 Mo. 588, 243 S.W. 91; Molle v. People's Palace, 178 Atl. 191; Roscoe v. Met. St. Ry. Co., 202 Mo. 588, 101 S.W. 32; Varner v. Kroger Grocery & Baking Co., 75 S.W. (2d) 585; Whitely v. McLaughlin, 183 Mo. 160, 81 S.W. 1094; 45 C.J., p. 651, sec. 25, p. 837, sec. 245; 16 R.C.L. 1042, sec. 561. (2) Appellant exercised no control, supervision nor duty with respect to the door in question and made no repairs nor alteration thereto. Bates v. Stearns, 141 Kan. 814, 44 Pac. (2d) 278; Bender v. Weber, 250 Mo. 551, 157 S.W. 570, 46 L.R.A. (N.S.) 121; Berkowitz v. Winston, 128 Ohio St. 611, 193 N.E. 343; Clark v. Chase Hotel Co., 74 S.W. (2d) 498; Cullings v. Goetz, 256 N.Y. 287, 176 N.E. 397; Degnan v. Doty, 246 S.W. 922; Glass v. Colman, 14 Wash. 635, 45 Pac. 310; Greenwald v. Geller, 9 N.J. 525, 154 Atl. 737, affirmed, 162 Atl. 399; Hurlstone v. London Elec. Ry. Co., 30 Times L. Rep. 398, summarized in Mew's Digest (1914), p. 318; Keegan v. Heileman Brewing Co., 129 Minn. 496, 152 N.W. 877, 1916F, L.R.A. 1149; Kohnle v. Paxton, 268 Mo. 463, 188 S.W. 155; Lafredo v. Bush Term. Co., 261 N.Y. 323, 185 N.E. 398; Leonard v. Storer, 115 Mass. 86; Mahnken v. Gillespie, 329 Mo. 51, 43 S.W. (2d) 797; Meade v. Montrose, 173 Mo. App. 722, 160 S.W. 11; Metzroth v. New York, 288 N.Y. Supp. 744, 241 N.Y. 470, 150 N.E. 519; Midland Oil Co. v. Thigpen, 4 Fed. (2d) 85; Peter Piper Tailoring Co. v. Dobbin, 195 Mo. App. 435, 192 S.W. 1044; Potter v. Ry. Co., 261 N.Y. 489, 185 N.E. 708; Texas & Pac. Ry. Co. v. Mangum, 68 Tex. 342, 4 S.W. 617; Turner v. Ragan, 229 S.W. 809; Zolezzi v. Bruce-Brown, 243 N.Y. 409, 154 N.E. 535, 49 A.L.R. 1414; 36 C.J., p. 212, sec. 888, p. 239, sec. 948; 2 Thompson on Real Property, p. 716, sec. 1536.

Julius Shapiro, Frank Benanti, William Goodman, Cowgill & Popham and John F. Cook for respondent.

(1) The court did not err, at the close of all the evidence in the case, in refusing to giving appellant's peremptory instruction in the nature of a demurrer to the evidence because: (1) Under the evidence it was appellant's duty to exercise ordinary care to provide a door reasonably safe for the use to which it was put and to maintain said door in a reasonably safe condition for said use; and, (2) Appellant failed in the above duties and was therefore negligent. (a) It was appellant's duty to exercise ordinary care to provide a door reasonably safe for the use to which it was put and to maintain said door in a reasonably safe condition for said use. Shaw v. Butterworth, 38 S.W. (2d) 57; Gray v. Pearline, 43 S.W. (2d) 805; Duff v. Eichler, 82 S.W. (2d) 881; Bloecher v. Duerbeck, 62 S.W. (2d) 555; Walsh v. S.W. Bell Tel. Co., 52 S.W. (2d) 845; Blickley v. Luce's Estate, 148 Mich. 239; Killian v. Logan, 162 Atl. 30; Collinson v. Crutner, 216 S.W. 1059; Boyce v. Tallerman, 183 Ill. 115, 55 N.E. 703; 36 C.J., pp. 218, 219, secs. 900, 902; Stackhouse v. Close, 94 N.E. 746; Bleisch v. Helfrich, 6 S.W. (2d) 978. Under the ordinance relating to fire equipment, and regardless of any other evidence placing duty on defendant, it was defendant's duty to provide and maintain the door in question. Zeibig v. Pfeiffer Chemical Co., 131 S.W. 131; Yall v. Snow, 100 S.W. 1. The evidence must be viewed in the light most favorable to plaintiff and plaintiff must be given the benefit of all reasonable inferences therefrom. Johnson v. Ry. Co., 64 S.W. (2d) 674; Chandler v. Hulen, 71 S.W. (2d) 752. Torts may grow out of the negligent failure to perform a duty, even though that duty arises from a contract. Braun v. Riel, 40 S.W. (2d) 621; Sartin v. Springfield Hospital Assn., 195 S.W. 1037; American Vet. Lab. v. Glidden Co., 59 S.W. (2d) 61. (2) Appellant negligently failed in its duties respecting the fire door and handle in question. Shaw v. Butterworth, 38 S.W. (2d) 62; Bloecher v. Duerbeck, 62 S.W. (2d) 555; Grant v. Tomlinson, 119 S.W. 1079; Vollrath v. Stevens, 202 S.W. 283; Eberson v. Inv. Co., 118 Mo. App. 67, 93 S.W. 297; Dashine v. Peres, 163 Atl. 231; Vitale v. Duerbeck, 62 S.W. (2d) 559; Walsh v. S.W. Bell Tel. Co., 52 S.W. (2d) 555. On this question of demurrer, respondent is entitled to have the evidence viewed in the light most favorable to her and is further entitled to the benefit of all reasonable inferences therefrom; and was not compelled to prove her case by positive testimony but was entitled to the benefit of all circumstantial evidence. Johnson v. Railroad Co., 64 S.W. (2d) 74; Chandler v. Hulen, 71 S.W. (2d) 752; Cole v. Railroad Co., 61 S.W. (2d) 346; McCord v. Schaff, 216 S.W. 320. Respondent is entitled to the benefit of the testimony of the expert witness Rogers to the effect that the fire door in question was not of reasonably safe construction for the traffic and use to which it was put, because the objection was made after the answer was given and was not stricken from the record. Radler v. Ry. Co., 51 S.W. (2d) 1013; Boyd v. Kansas City, 237 S.W. 1008.

COLLET, J.

Respondent Amelia Lahtinen recovered a judgment against appellant Continental Building Company for $25,000 for personal injuries received by her because of the alleged fault of appellant. The principal question presented is the sufficiency of the evidence to support the verdict. The facts pertinent to the determination of that issue follow.

Appellant is the owner of what is known as the Kansas City Athletic Club building, a twenty-two story structure located at the northwest corner of Eleventh and Baltimore Avenue, Kansas City, Missouri. Immediately north of and immediately adjacent to the Kansas City Athletic Club building is a three-story building referred to as the Schier building owned by Phil Schier and Hugo Levy. On July 19, 1923, while the Kansas City Athletic Club building was still under construction appellant leased the entire third floor of that building, excepting elevator shafts, stairway and ventilating hatches to the Chamber of Commerce of Kansas City Missouri, for a period of fifteen years from the date of its completion. By the terms of that lease appellant agreed, among other things, to repair and maintain the building and permanent fixtures; to provide a separate elevator and operator for the use of lessee, its members and those having need therefor; to provide a stairway from the leased premises to the ground floor entrances; and to furnish and maintain such fire equipment as is required by insurance underwriters or city ordinances of Kansas City, Missouri. The Chamber of Commerce took possession of the premises under this lease in 1923 and continued in possession until after respondent's injury. Prior to January 8, 1931, the Charities Bureau of the Chamber of Commerce was located on the mezzanine floor of the Kansas City Athletic Club building. On the latter date the Chamber of Commerce entered into a lease with Phillip Schier and Hugo Levy, owners of the Schier building, under the terms of which the Charities Bureau was to occupy the entire third floor of that building for a term of eight years. There was no passageway between the third floor of the Schier building and the third floor of the Kansas City Athletic Club building. Each building had a separate wall. The latter lease provided that Schier and Levy should obtain permission from the proper parties to construct an opening through the wall of the Kansas City Athletic Club building and to construct at their expense a doorway through the two walls, the doorway to be fitted with "a pair of 2/6 × 7' underwriter's label, metal covered doors on the Kansas City Athletic Club side of the wall and with a sliding fire door underwriter's label approved" on the north side of the south wall of the Schier building. The floor level of the third floor of the Schier building was approximately five feet lower than the floor level of the third floor of the Kansas City Athletic Club building. The lease provided that Schier and Levy were to construct a stairway from the doorway down to the floor level of the third floor of the Schier building, and that "the improvements on said land are/or will be constructed of good material in good workmanlike manner, and in conformity with the laws and ordinances affecting same; and said premises will be in good tenantable condition." In addition to this provision the latter lease further provided "that the lessors will keep the roofs, down-spouts, sky-lights, gutters, outer walls, plumbing, heating plant, hall-ways, stairways, sidewalks and approaches belonging or in any way appertaining to the above described premises, in good and sufficient repair, and will make any such repairs as may be necessary." The doorway was constructed, the doors and stairway installed and thereafter on February 15, 1931, the Charities Bureau moved into the Schier building.

Although the Schier building was equipped with a stairway leading from the third to the ground floor of that building yet the new door was used almost, if not entirely exclusively, in going to and from the Charities Bureau. Employees and officials of other departments of the Chamber of Commerce passed through it in going from their offices in the Kansas City Athletic Club building to the Charities Bureau in the transaction of inter-departmental business. Likewise the personnel of the Charities Bureau passed through it in going from their quarters to other departments and to other floors of the Kansas City Athletic Club building or to the street. Visitors having business with the Charities...